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Radaich v Smith; 7 Sep 1959

References: (1959) 101 CLR 209,
Links: Austlii
Coram: Justice Windeyer
(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives . . A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass . . All this is long established law: see Cole on Ejectment (1857.
The lessee, having a right to exclusive possession, could, before entry into possession, maintain an action for ejectment. A licensee, if he did not have a right to exclusive possession, could not bring ejectment. A tenant or a licensee who was in actual possession – that is to say, in occupation in circumstances in which he had exclusive possession in fact – could maintain an action for trespass against intruders; but that is because he relied on the fact of his possession and not on his title. ‘
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Last Update: 25-Oct-15 Ref: 247616

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